A case in the United States involving the GNU GPL made headlines recently with a denial of a motion to dismiss. The case, Artifex Software, Inc. v. Hancom, Inc., involves a piece of software licensed under the GPL version 3 or later, called Ghostscript. It is a project from Artifex for handling PostScript, PDFs, and printers (GNU Ghostscript is a separate version of the project, and is not involved or implicated in the case).

Artifex runs a business of selling exceptions to its GPL-licensed software. They offer the software for no cost under the terms of the GPL but then also let others pay to avoid the conditions of the license. If someone doesn't pay for the exception, however, then they may only use the work in accordance with the terms of the GPL.

That is apparently where the problem arose in this case. Artifex’s complaint alleges that Hancom incorporated Ghostscript into its own proprietary software without following the terms of the GNU GPL or paying for an exception. In its suit, Artifex claimed two counts based on Hancom's inclusion of Ghostscript: (1) a violation of copyright; and (2) a breach of contract based on the GPL. Hancom filed a motion to dismiss the case. A motion to dismiss under U.S. law is a motion at the start of the case arguing that the facts the plaintiff presented do not support the counts alleged. The court denied the motion, finding that Artifex could move forward with both the copyright and contract counts.

A few characteristics of the U.S. legal system need to be understood to place this ruling in the proper context. First, a motion to dismiss does not determine the truth of the facts. In other words, a judge making a ruling on a motion to dismiss determines whether the law would provide the complaining party with the relief it requests if all facts alleged in the complaint were true. If the law says that the plaintiff has no case (even if all facts were true) then the case can be dismissed without the need to introduce or weigh evidence. Otherwise, the case proceeds to trial to determine the truth of the complainant's allegations. Secondly, rulings at this initial lower court have limited precedential value. Other courts presented with a similar question don't have to follow the decision here, though they will likely read and consider whether they agree with the reasoning of this judge if confronted with a similar case. This judge could also be deemed wrong if the case is appealed and reviewed by a higher court. For now, the opinion presents us with an interesting situation: a GPL enforcement lawsuit is proceeding under both a contract and copyright theory. This case is one to watch as it moves forward.

With that context in place, the opinion does present a fascinating question in terms of breach of contract. While a violation of a free license giving rise to a copyright violation is now old hat, whether violation of a license like the GPL could be treated as a breach of contract has been long a topic of discussion among licensing geeks. Long ago, those who opposed the GNU GPL claimed that it was not enforceable where a violator had not agreed to its terms. Since you couldn't breach a contract you hadn't agreed to, the terms of the license lacked any way to force compliance. But the GPL is a license. The only thing that gave you permission to distribute the work was the GPL, and without that permission, you cannot distribute the work without violating the copyright on the work.

In this case, the judge found that Artifex had adequately stated facts that support its breach of contract claim. Hancom attacked the contract claim on two fronts, first that Artifex had not properly demonstrated that there was agreement to the GPL, and secondly that Artifex properly plead any harm that resulted from the alleged breach. On the first front, the judge found that "[t]he GNU GPL … provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license." (We disagree with the judge's terminology here -- the GPL is a commercial license; there is no problem charging money for providing someone a copy of GPL-covered software as long as they are also provided with full rights under the GPL including access to the source code.) Artifex also claims that Hancom publicly stated that its use of Ghostscript was licensed under the GNU GPL. This was enough to claim the existence of a contract.

On the latter, the judge found that the business model of Artifex indicated a loss of revenue, but also noted that harm could be found even where money isn't involved. The judge, quoting a prior case, noted that there are "substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties." While not dispostive, this last note is particularly interesting for many free software developers, who generally share their work at no cost.

There is more to the ruling, regarding pre-emption and international aspects of copyright, that will likely be of interest to law geeks. But this section on treating the GPL as a contract truly makes this a case that free software activists will want to keep an eye on. We'll be following the case closely and publishing regular updates as it progresses. To stay in the loop, here's what you should do:

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